Steven T. Cook, Esq.
Stapleton Law Offices
Huntington, West Virginia
Attorney for Bonita W., Mother
Darrell V. McGraw, Jr., Esq.
Charleston, West Virginia
Teresa Brown, Esq.
Assistant Attorney General
Teays, West Virginia
Attorneys for WV DH&HR
JUSTICE MAYNARD delivered the Opinion of the Court.
to Rule 35(a)(1) of the West Virginia Rules of Procedure for Child Abuse and
Neglect, an oral voluntary relinquishment of parental rights is valid if the
parent who chooses to relinquish is present in court and the court determines
that the parent understands the consequences of a termination of parental
rights, is aware of less drastic alternatives than termination, and is informed
of the right to a hearing and to representation by counsel.
2. An oral voluntary relinquishment of parental rights made on the record in open court is valid regardless of whether the parent who chooses to terminate his or her rights executes and submits a duly acknowledged writing pursuant to W.Va. Code § 49-6-7.
On November 17, 2000, during
a status review hearing in the Circuit Court of Wayne County, the appellant,
Bonita W., voluntarily relinquished her parental rights to her daughters,
Sarah S.B. and Tessla N.M. The appellant subsequently filed a motion seeking
to set aside the voluntary termination. The circuit court denied the motion.
She alleges the court erred because the oral relinquishment was not verified
in writing and was made under duress. We find no error.
Sarah S.B. is the daughter of Bonita W. and Dennis G. and is currently seven years old. Tessla N.M. is the daughter of Bonita W. and Ricky M. and is currently five years old. (See footnote 1) The West Virginia Department of Health and Human Resources (DHHR) has provided assistance to the appellant since Sarah was approximately eight months old. On May 2, 2000, Sarah and Tessla were referred to DHHR because both girls alleged that their mother's husband, Tester Wayne W., sexually abused them. The girls also reported that their mother sexually and physically abused them.
On May 16, 2000, Deborah Roach, a social worker for DHHR, filed a petition in the interest of the children. The petition stated that Sarah and Tessla reported that they had been sexually abused by Wayne W.; that both girls were infested with head lice; that the home was dirty with dog feces on the floor; that one child was observed eating food off of the porch floor; and that Sarah must repeat kindergarten even though she is of average intelligence because she missed over forty days of school. The petition stated that the appellant took the girls to Wayne Health Services to see a doctor regarding sexual abuse but failed to take them to the sexual abuse examinations which Wayne Health Services scheduled in Huntington. The appellant also failed to bring the girls to interviews that were scheduled with DHHR. When DHHR suggested that a Child Protective Services (CPS) case might be opened to protect the children, the appellant threatened to take the children to visit her father in Ohio and not return to West Virginia. This was a real concern for DHHR because the appellant moved to Virginia once before while a CPS case was open. The children also indicated that Wayne W. would move with them. (See footnote 2)
DHHR petitioned for emergency
removal of the children from the home. On May 22, 2000, the circuit court
determined the children were neglected or abused and set the matter for preliminary hearing on May 26, 2000. The order does not specify
the physical placement of the children at that time.
(See footnote 3) Counsel was appointed to
represent the appellant and that representation has continued throughout these
proceedings. At the close of the May 26, 2000 hearing, the court found by
clear and convincing proof that the children are neglected or abused by reason
of the following facts: (1) That the children may have been touched inappropriately;
and (2) that there are severe problems in the cleanliness and care of the
children. DHHR retained temporary legal custody of the children who
were to remain in their present placement; the appellant was granted supervised
visitation; Dennis G.'s schedule of visitation continued; Ricky M. would have
no contact with the children until he appeared before the court; and Wayne
W. was prohibited from having any contact with the children.
Following a review hearing
which was held on July 6, 2000, the court directed DHHR to develop a family
case plan and ordered the appellant to fully comply with the plan. The appellant
subsequently filed a motion for an improvement period. The dispositional hearing
was held on August 11, 2000 at which time the court found that the appellant
has recently begun to be minimally compliant with [DHHR]. Consequently,
she was granted a post-adjudicatory improvement period of six months. DHHR retained legal
custody of the children and Patricia G., Dennis G.'s mother, was granted physical
custody of both girls.
A status review hearing
was held on November 17, 2000. At the beginning of the hearing, Steven Cook,
the appellant's attorney, made a proffer to the court stating that the appellant
was considering voluntarily relinquishing her parental rights. During the
hearing, Mr. Cook questioned the appellant. He specifically asked her if she
contacted him several months ago . . . about considering a relinquishment
of your rights. She answered, Yes, I did. He then asked,
But as of today's date you have decided to bring this to the Judge's
attention and you would like to voluntarily relinquish; is that correct?
She answered, Yes. The appellant explained her reasoning to the
court. She stated that the girls were doing well with Patricia G. and seemed
happy. She believed the girls were confused and hurting from being pull[ed]
back and forth not knowing and wondering[,] and she thought the time
had come to stop the uncertainty. She stated that she wanted them to
be able to make a transition and go ahead and hopefully be happy[.]
Mr. Cook questioned the
appellant extensively regarding whether she was making this decision of
[her] own free will and whether she understood that she did not have
to voluntarily relinquish her rights. She unequivocally stated that she understood
what she was doing and that she was making the decision of her own free will.
As to post-termination visitation, the appellant stated that she understood the girls
could see her if they so chose. She also understood that she would have no
actual right to see the children and could not force visitation. Her attorney
finally asked, You have had a long time to think about this; correct?
The appellant answered, Yes. I have had seven months and two days to
think about this.
The court accepted the voluntary
relinquishment by stating,
I believe the mother has made a reasoned and voluntary decision based on the fact that she has recognized what she believes to be in the best interest of the children and has voluntarily relinquished her parental rights. I'm going to accept the voluntary relinquishment. Her parental rights will be terminated.
The improvement period and the appellant's parental rights were terminated in the court's order which was entered on December 22, 2000. Thereafter, on February 13, 2001, the appellant filed a motion seeking to set aside the oral relinquishment of her parental rights. In support of her motion, she argued that an agreement to terminate parental rights cannot be valid unless it is made by a duly acknowledged writing. (See footnote 4) She stated further that she did not wish to relinquish her rights at that time; therefore, any termination would not be voluntary. On April 13, 2001, the court entered an order which terminated Ricky M.'s parental rights to Tessla N.M. due to abandonment; ordered DHHR to determine whether post-termination visitation would take place between the appellant and the children; and denied the appellant's motion to revoke her voluntary relinquishment of parental rights. It is from this order that the appellant appeals.
This appeal presents a question
of law involving interpretation of a statute. Accordingly, [w]here the
issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard
of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194
W.Va. 138, 459 S.E.2d 415 (1995). Moreover,
When this Court reviews challenges to the findings and conclusions of the circuit court, a two-prong deferential standard of review is applied. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard.
Syllabus Point 1, McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996).
On appeal, the appellant
contends the circuit court erred by terminating her parental rights pursuant
to an oral relinquishment when W.Va. Code § 49-6-7 requires a duly acknowledged
writing. She also believes the voluntary relinquishment should be set aside
because the decision was made under duress. DHHR argues that the statute does
not contemplate that a parent may only relinquish parental rights in writing
and this becomes clear when the statute is read together with the Rules of
Procedure for Child Abuse and Neglect. DHHR also contends there is no evidence
to support the appellant's belated claim that she was compelled to relinquish
her rights under duress. We agree.
The first issue which we
must resolve is whether an oral voluntary relinquishment of parental rights
is valid when the relinquishment is made in open court on the record but is
not followed up with a duly acknowledged writing. In the case sub judice,
the appellant admits she voluntarily terminated her rights to both girls on
the record in open court. There is no question the voluntary relinquishment
occurred after extensive questioning by the appellant's attorney. She, nonetheless,
argues on appeal that because of duress and because she was later informed
the State would not pursue sexual assault charges against Wayne W., she did not intend to voluntarily terminate her rights on November
17, 2000. She believes this is borne out by the fact that no duly acknowledged
The appellant's argument
is confusing. In the brief she submitted on appeal, the appellant admits that
she voluntarily relinquished her rights but at the same time she argues that
she never intended to relinquish her parental rights. She obviously
cannot have it both ways. It appears, from reading her brief and the record
submitted on appeal, that the appellant fully intended to voluntarily relinquish
her rights during the November 17, 2000 court hearing but later changed her
mind. Three months passed between the voluntary termination and the date on
which the appellant filed her motion seeking to set aside the voluntary relinquishment.
She relates that at some point during this time she understood the State would
not pursue sexual abuse charges against Wayne W. and indicates that she changed
her mind at that time. However, that is not what she argues; instead, she
tries to convince this Court that she did not intend to do what she did during
the November 17, 2000 hearing. The transcript of the hearing suggests otherwise.
At the beginning of the
hearing, the appellant's attorney
(See footnote 5) made a proffer to the court.
He stated, I will just proffer that she is considering a voluntary relinquishment
and we would like to put some things on the record. Her attorney then
questioned the appellant regarding whether she wanted to relinquish her rights
and whether the relinquishment was voluntary. He also had the appellant explain
her reasoning to the court. The court accepted the relinquishment on the record
in open court and subsequently entered an order stating that the Court
is of the opinion that the least restrictive alternative which is in the best
interest of the children in this case is to accept the voluntary relinquishment
of parental rights by Bonita W. and to terminate such parental rights.
Given this set of facts, we cannot say the circuit court abused its discretion
by terminating the appellant's rights and by refusing to set the voluntary
termination aside. The remaining question is whether the termination is valid
minus a written agreement.
When one reconciles W.Va.
Code § 49-6-7 with the West Virginia Rules of Procedure for Child Abuse
(See footnote 6) it becomes obvious that a voluntary relinquishment made on the record in open court is valid regardless of whether the oral
relinquishment is followed by a duly acknowledged writing. Rule 35(a)(1) contains
the procedure whereby rights may be terminated when the parent(s) is/are present
in court and has/have not signed a relinquishment of parental rights;
Rule 35(a)(3) contains the procedure whereby rights may be terminated when
the parent(s) is/are present in court and has/have voluntarily relinquished
parental rights in writing. If rights could only be terminated by a signed
agreement, then Rule 35(a)(1) would be unnecessary. Either way, the circuit
court must determine whether the parent understands the consequences of terminating
his or her rights, is aware of less drastic alternatives, and has been informed
of the right to a hearing and to representation by counsel.
In the case at bar, the
appellant was present in a court hearing and was represented by counsel; she
fully understood the alternatives which the department might pursue; and she stated that she understood the consequences of voluntarily
relinquishing her rights. The requirements of the rule were satisfied. A signed
agreement was not required under these circumstances; we will discuss, infra,
when signed agreements are required. We hold that, pursuant to Rule 35(a)(1)
of the Rules of Procedure for Child Abuse and Neglect, an oral voluntary relinquishment
of parental rights is valid if the parent who chooses to relinquish is present
in court and the court determines that the parent understands the consequences
of a termination of parental rights, is aware of less drastic alternatives
than termination, and is informed of the right to a hearing and to representation
do not always take place in a court room. Parents may be in an extrajudicial
setting when they choose to terminate their rights. For instance, a parent
may choose to terminate his or her rights when he or she is in a DHHR office
or when he or she is involved in a private adoption proceeding. It is these
situations to which W.Va. Code § 49-6-7 applies, and these relinquishments
are valid only if made by a duly acknowledged writing[.]
In contrast to what he now argues, the transcript of the February 9, 2001 interim judicial review hearing demonstrates that appellant's counsel agreed with the court that an oral relinquishment is valid when a parent who chooses to terminate his or her rights is present before the court. The following colloquy took place:
COURT: The way I read that [W.Va. Code § 49-6- 7] is if the parent doesn't
appear here, they may enter a valid voluntary relinquishment signed and notarized
and presented in court. It's valid. It can be a valid voluntary relinquishment
without being present in court. She was present in court.
MR. STAPLETON: That is correct, Your Honor. We do not intend to mislead the Court in any way. The Court inquired of her and she said several times that she did consent to it.
We agree with the circuit court that parents who relinquish their parental rights outside of a court setting must submit a signed and notarized agreement in order for the relinquishment to be valid. We, therefore, hold that an oral relinquishment of parental rights made on the record in open court is valid regardless of whether the parent who chooses to terminate his or her rights executes and submits a duly acknowledged writing pursuant to W.Va. Code § 49-6-7 (1977). (See footnote 7) Of course, all agreements to terminate parental rights must be made free from duress and fraud.
That is the appellant's
final complaint. She contends that she agreed to terminate her rights under
duress and, as a result, the relinquishment cannot be accepted by the court as valid. In the brief she submitted on appeal she states that
the duress amounted to a DHHR worker explaining to her that relinquishment
would be in the best interests of the children and telling her that she would
be able to visit the children through a post-termination visitation plan.
The transcript of the hearing does not substantiate this complaint.
During the hearing, the
appellant specifically stated that she wished to voluntarily relinquish; that
she was relinquishing of her own free will; that she first approached her
attorney to suggest voluntary relinquishment; and that she understood the
decision regarding post-termination visitation would be left up to the children
and DHHR. Three months later the appellant's attorney represented to the court
for the first time that the appellant had changed her mind and did not
desire to have her parental rights terminated. He asked the court to
set aside the voluntary termination. The court reviewed the circumstances
under which the relinquishment took place and considered the best interests
of the children. The motion to revoke was denied. Under these circumstances,
we cannot say the court abused its discretion by deny[ing] [the appellant]
the right to withdraw her voluntary relinquishment.
The appellant chose to voluntarily
relinquish her parental rights on the record in open court. The court correctly
determined the relinquishment was valid minus a notarized written agreement.
The appellant understood the consequences of termination; her attorney assured her that he would vigorously defend against
termination and fight for less drastic alternatives; and she was represented
by counsel during these entire proceedings. The court fully complied with
the requirements of the statute and the rules.
For the foregoing reasons, the order of the circuit court which denied the appellant's motion to set aside her voluntary termination of parental rights to Sarah S.B. and Tessla N.M. is affirmed.
termination of parental rights.--If a parent voluntarily relinquishes
parental rights or fails to contest termination of parental rights, the court
shall make the following inquiry at the disposition hearing:
(1) If the parent(s) is/are present at the hearing but fail(s) to contest termination of parental rights, the court shall determine whether the parent(s) fully understand(s) the consequences of a termination of parental rights, is/are aware of possible less drastic alternatives than termination, and was/were informed of the right to a hearing and to representation by counsel.
(3) If the parent(s) is/are present in court and voluntarily has/have signed a relinquishment of parental rights, the court shall determine whether the parent(s) fully understand(s) the consequences of a termination of parental rights, is/are aware of possible less drastic alternatives than termination, and was/were informed of the right to a hearing and to representation by counsel.